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The law in South Africa provides for couples to choose the type of matrimonial property system they prefer when entering into marriages. For those who prefer to be married out of community of property, it is required that they execute a valid Antenuptial Contract before entering into the marriage. A question that often arises is whether, if parties enter into a marriage before they execute a valid Antenuptial Contract, are they able to execute one still?

Can an Antenuptial Contract be Signed After Marriage?

As an example, John and Jane decided to enter into a marriage in December 2022. They decided to be married out of community of property, and were well aware that they were required to execute a valid Antenuptial contract. They made all the necessary arrangements and everything came into shape for the marriage ceremony. However, owing to the many things that had to be attended to, they subsequently forgot to consult with a Notary in order to have an Antenuptial contract executed, they only remembered about it in January after their marriage had already been concluded. The questions that soon occupied their minds were:

1. Is their marriage valid?
2. What matrimonial property regime governs their marriage at the moment?
3. Could they still execute an Antenuptial contract?

Without professional legal assistance, the questions above may leave anyone baffled. We shall touch on these vital questions to clear things up.

The fact that John and Jane did not execute a valid Antenuptial contract before entering into the marriage does not affect the validity of their marriage, as long as other requirements were met as per the Marriages Act 25 of 1961. The execution of an Antenuptial contract only regulates the type of matrimonial property system that will be applicable to the marriage, not the validity of the marriage per se.

What is the Default Matrimonial Property System in South Africa?

The default matrimonial property system in South Africa is the marriage in community of property and therefore, where couples enter into a marriage without concluding an Antenuptial contract, this default system will apply. In the example given above, John and Jane are consequently married in community of property which effectively means there is a joint estate between the spouses wherein they own undivided shares.

To answer the last question, whereas some people believe spouses may still execute an Antenuptial contract after entering into the marriage, this is not a correct view, legally and technically speaking. An Antenuptial contract may only be executed before entering into the marriage. If spouses, after entering into the marriage in community of property, decide to alter their matrimonial property system to out of community of property they ought to execute a Postnuptial contract after leave to do so has been granted by the High Court. Whilst an Antenuptial contract and a Postnuptial contract generally regulate the affairs of the estates of the spouses in much the same way, the difference between them is vast.

1. An Antenuptial contract is concluded before entering into the marriage whilst a Postnuptial contract is executed where spouses are already married but require to change the matrimonial property system that is applicable to their marriage;
2. A Postnuptial contract may only be executed with the leave of the court as per section 21 of the Matrimonial Property Act 88 of 1984.

In conclusion, the short answer to the question if couples who are already validly married may execute an Antenuptial contract is, No. What they can execute, however, is a Postnuptial contract which generally serves the same purpose.

Van Deventer & Van Deventer Incorporated  - Marriage Law Attorneys in South Africa

We assist with the execution of Antenuptial contracts, Postnuptial contracts as well as family law litigation. Our interactive website outlines other services that we offer professionally. Kindly contact us for more information.

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